Municipal Law – MBLBhttps://mblb.com
Trust anchors everything we doTue, 18 Dec 2018 17:36:16 +0000en-UShourly1Louisiana Passes Amendment Requiring Unanimous Jury Verdicts for Felony Convictionshttps://mblb.com/municipal-law/louisiana-passes-amendment-requiring-unanimous-jury-verdicts-for-felony-convictions/
Mon, 12 Nov 2018 22:48:03 +0000https://mblb.com/?p=9894Since the Jim-Crow era, Louisiana has not required unanimous jury verdicts to obtain a felony conviction in non-capital cases. Historically, it was shown that the non-unanimous jury requirement was put in place to disenfranchise African-American voters who made up a minority on most jury pools. Louisiana remained only one of two states that allowed non-unanimous … More»

]]>Since the Jim-Crow era, Louisiana has not required unanimous jury verdicts to obtain a felony conviction in non-capital cases. Historically, it was shown that the non-unanimous jury requirement was put in place to disenfranchise African-American voters who made up a minority on most jury pools. Louisiana remained only one of two states that allowed non-unanimous felony convictions, only requiring 10 of 12 jurors to agree.

This past week, Louisiana voters overwhelmingly voted in favor of an amendment to the Louisiana Constitution which now requires unanimous jury verdicts in all felony cases. The amendment had broad bipartisan support, and will apply to any crimes that take place after 2018.

]]>Summary Judgment Granted on Claim Arising out of Angola Prison Knife Attackhttps://mblb.com/municipal-law/summary-judgment-granted-on-claim-arising-out-of-angola-prison-knife-attack/
Mon, 05 Nov 2018 19:39:03 +0000https://mblb.com/?p=9836A security officer at the Louisiana State Penitentiary in Angola, Louisiana was sued by an Angola inmate, Alfred Deal, for failing to stop another inmate, Myles Allen, from stabbing him. The dispute between the inmates began over control of a prison television during which Allen threatened to kill Deal. The following day, while being escorted … More»

]]>A security officer at the Louisiana State Penitentiary in Angola, Louisiana was sued by an Angola inmate, Alfred Deal, for failing to stop another inmate, Myles Allen, from stabbing him. The dispute between the inmates began over control of a prison television during which Allen threatened to kill Deal. The following day, while being escorted to a yard, Allen broke free from his restraints and stabbed Deal with a homemade knife.

Deal v. Department of Corrections, et al.

Deal filed a federal civil rights action against Master Sergeant Bobby Earl for failing to protect him from the attack, Deal v. Department of Corrections, et al., No. 16-00061, 2018 WL 4935454, at *2 (M.D. La. Oct. 11, 2018). Deal alleged that the officer’s failure to protect him violated his Eight Amendment right against cruel and unusual punishment. Federal courts have extended the Eighth Amendment’s prohibition to prison officials, who have a constitutional duty to protect inmates from physical harm caused by their fellow inmates.

judge holds Plaintiff failed to Establish Deliberate Indifference

In order for a plaintiff to prove an Eighth Amendment failure to protect claim, he or she must show that they were incarcerated under conditions posing a substantial risk of serious harm and that the security officer was deliberately indifferent to this risk. The United States Fifth Circuit Court of Appeal has explained that deliberate indifference is a very high standard for a plaintiff to meet. It requires evidence that the officer is aware of facts from which she could infer that a substantial risk of harm exists and that officer actually draws that inference.

On the defendants’ motion for summary judgment, Judge Brian Jackson held that Deal did not present any evidence to establish deliberate indifference. The undisputed evidence presented by Master Sergeant Earl established that he did not know that Allen posed a substantial risk of serious harm to Deal and that Allen was not listed on Deal’s “enemy list” before the attack. Earl also attested that he did not know that Allen had threatened Deal. In the absence of evidence to establish deliberate indifference, summary judgment was granted on Deal’s federal civil rights claim.

]]>Decision by Fifth Circuit: Vehicle Passengers’ Arrest for Refusing to Provide Identification Violates 4th Amendmenthttps://mblb.com/municipal-law/vehicle-passengers-arrest-for-refusing-to-provide-identification-violates-4thamendment/
Tue, 05 Jun 2018 15:10:28 +0000https://mblb.com/?p=9561A recent case, Johnson v. Thibodaux City, 887 F.3d 726 (5thCir. 2018) should be of interest to law enforcement as to the limits of what an officer can demand of an individual. Johnson v. Thibodaux City – The Background Officers of the Thibodaux Police Department recognized a driver of a truck, Latisha Robertson, as having an outstanding … More»

]]>A recent case, Johnson v. Thibodaux City, 887 F.3d 726 (5thCir. 2018) should be of interest to law enforcement as to the limits of what an officer can demand of an individual.

Johnson v. Thibodaux City – The Background

Officers of the Thibodaux Police Department recognized a driver of a truck, Latisha Robertson, as having an outstanding warrant. They stopped the truck, asked Robertson to exit and handcuffed her. There were several passengers in the vehicle including two individuals who refused to identify themselves, instead, simply sitting in the vehicle and using their cell phones. The officers arrested the passengers for resisting an officer by refusing to identify themselves during the course of a lawful detention, an alleged violation of Louisiana Revised Statute 14:108. That statute requires an “arrested or detained party” to provide identification only when the officers make a “lawful arrest” or a “lawful detention”.

The Lawsuit and the Court’s Findings

The passengers later filed suit against the police department for the alleged unlawful arrest. The Court noted that under the Fourth Amendment, police officers may not require identification absent an otherwise lawful detention or arrest based on reasonable suspicion or probable cause. The Court first assessed whether the initial stop was justified. It was, as it was to affect the arrest of Robertson, the driver who had an outstanding warrant.

Secondly, the Court determined whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop. There was no basis to continue the detention of the occupants solely to obtain identification because there were no facts developed during the justified portion of the stop that would give reason for requesting identification of the passengers.

In the case, the officers who asked for the passengers’ identification explicitly testified that they had no suspicion of ongoing or future criminal activity. As such, there was no basis for the officers to conclude that there was any alleged violation of Revised Statute 14:108 for failure to produce identification.

The Court remanded for further consideration of qualified immunity and possibly damages, on the unlawful arrest claims of the passengers.

The Upshot

Based on this decision by the Fifth Circuit, police officers can’t arrest a person for refusal to produce identification if there is no reasonable suspicion of a crime on the part of the individual who won’t produce identification.

]]>Baton Rouge Appeals Court Hears Oral Argument on Gov. Edwards’ LGBT-Rights Orderhttps://mblb.com/commercial-corporate-law/baton-rouge-appeals-court-hears-oral-argument-on-gov-edwards-lgbt-rights-order/
Thu, 24 Aug 2017 14:36:25 +0000https://legallagniappeblog.com/?p=5078A three-judge panel at the Louisiana Court of Appeals for the First Circuit heard oral argument on Tuesday, August 15, 2017, on whether Governor John Bel Edwards’ April 2016 executive order to protect the rights of the LGBT community in state government was beyond the scope of his constitutionally-authorized powers. Governor Edwards’ order seeks to … More»

]]>A three-judge panel at the Louisiana Court of Appeals for the First Circuit heard oral argument on Tuesday, August 15, 2017, on whether Governor John Bel Edwards’ April 2016 executive order to protect the rights of the LGBT community in state government was beyond the scope of his constitutionally-authorized powers.

Governor Edwards’ order seeks to ban discrimination in state government based on gender identity and sexual orientation. In December 2016, in response to a lawsuit filed by Attorney General Jeff Landry, District Court Judge Todd Hernandez ruled that Governor Edwards’ order violated Louisiana’s constitutional separation of powers. Specifically, Judge Hernandez ruled that Governor Edwards’ order unconstitutionally sought to create state law and tried to skirt Louisiana lawmakers who have opposed writing such protections into statute.

Governor Edwards’ camp claims, however, that Governor Edwards has absolute authority to implement contact terms for the executive branch of government and that his order is no different than the directives previously issued by former Louisiana governors.

]]>Louisiana Constitution Requires Payment of Fair Market Value for Levee Improvement Servitudeshttps://mblb.com/municipal-law/louisiana-constitution-requires-payment-of-fair-market-value-for-levee-improvement-servitudes/
Tue, 11 Jul 2017 19:22:40 +0000http://legallagniappeblog.com/?p=5043In January 2010, in an effort to upgrade the size of permanent levee servitudes, the Board of Commissioners of the South Lafourche Levee District (“BOC”) approved a resolution appropriating a permanent levee servitude affecting certain tracts of land located on the west bank of Bayou Lafourche. Chad M. Jarreau owned a 17.1 acre tract of … More»

]]>In January 2010, in an effort to upgrade the size of permanent levee servitudes, the Board of Commissioners of the South Lafourche Levee District (“BOC”) approved a resolution appropriating a permanent levee servitude affecting certain tracts of land located on the west bank of Bayou Lafourche. Chad M. Jarreau owned a 17.1 acre tract of land and was notified that one acre of that land was within the appropriated area. Jarreau received notification that he was to stop all activity on that tract immediately. In spite of this notice, Jarreau continued excavating dirt. The BOC filed for permanent injunction, and issued a check to Jarreau for $1,326.69 as compensation for value of the appropriated property. Jarreau rejected the dollar amount and filed a reconventional demand seeking compensation for the appropriated land, severance damages, economic and business losses, general damages, and statutory attorney’s fees. The district court awarded the BOC $16,956.00 for the dirt excavated by Jarreau, and awarded Jarreau $11,8609.00 as compensation for the appropriated tract, $164,705.00 for economic and business losses, $43,811.85 for attorney’s fees, and $26,490.95 for expert witness fees. The court of appeal affirmed the award for fair market value, but reversed the award of economic and business losses.

The Louisiana Supreme Court granted supervisory writ and considered what compensation, if any, to Jarreau was appropriate. The Supreme Court looked to both the United States Constitution and the Louisiana Constitution, which both contain provisions regarding the taking of private property for public use. The Louisiana Constitution provides for governmental taking of property that allows for: (1) expropriation of private property used for public purposes and (2) appropriation of private property necessary for levee or levee drainage purposes. Where expropriation refers to the taking of ownership, appropriation involves taking of merely a servitude. Under La. R.S. 38:301, where property is taken by way of a permanent levee servitude, compensation shall be the “fair market value of the property taken or destroy before the proposed use of the property or construction of the levee facilities.” The Supreme Court concluded that Jarreau was entitled to fair market value of the appropriated property at the time of the appropriation, which did not include lost profits or other severance damages. The court affirmed the award of $11,869.00 to Jarreau as compensation for the appropriated tract. Based on this award, the Court also awarded attorney’s fees of $2,635.57.

]]>Monumental Decision-Makinghttps://mblb.com/municipal-law/monumental-decision-making/
Fri, 09 Jun 2017 00:51:52 +0000http://legallagniappeblog.com/?p=4959In the midst of heated protests in New Orleans surrounding the removal of Confederate monuments, a committee in the Louisiana Legislature has voted to present a bill that would bar localities from removing Confederate monuments without the approval of voters. The bill’s purview extends to all military-related monuments. Those in favor of the recently removed … More»

]]>In the midst of heated protests in New Orleans surrounding the removal of Confederate monuments, a committee in the Louisiana Legislature has voted to present a bill that would bar localities from removing Confederate monuments without the approval of voters. The bill’s purview extends to all military-related monuments.

Those in favor of the recently removed Confederate monuments in New Orleans considered the monuments a “nuisance” — statues that parade a symbol of slavery and a painful reminder of the Civil War. Not surprisingly, New Orleans Deputy Mayor Ryan Berni testified against the bill. He highlighted that the courts have affirmed the city’s ownership of the monuments and said the city should have control over what to do with its property.

The bill presents an intriguing issue of the ultimate control of such monuments. To avoid future accountability, the City of New Orleans may want to support putting the decision to remove such monuments directly in the hands of the voters.

]]>Officers Violate First and Fourth Amendment Rights of Anti-Abortion Protestor and Are Not Entitled to Qualified Immunityhttps://mblb.com/municipal-law/officers-violate-first-and-fourth-amendment-rights-of-anti-abortion-protestor-and-are-not-entitled-to-qualified-immunity/
Tue, 18 Apr 2017 14:43:02 +0000http://legallagniappeblog.com/?p=4949Jonathan Davidson stood in a green space between the parking lot of a commercial strip center which included a Planned Parenthood clinic and U.S. Highway 59 in Stafford, Texas and held a sign that said “Pray to End Abortion”. Employees of the Planned Parenthood clinic called the Stafford Police Department who dispatched officers to the … More»

]]>Jonathan Davidson stood in a green space between the parking lot of a commercial strip center which included a Planned Parenthood clinic and U.S. Highway 59 in Stafford, Texas and held a sign that said “Pray to End Abortion”. Employees of the Planned Parenthood clinic called the Stafford Police Department who dispatched officers to the scene. Mr. Davidson was initially arrested for “failing to identify” under Tex. Penal Code § 38.02(a), but the Court noted that this statute applies only when the officer “has lawfully arrested the person and requested the information”.

The Court then turned to whether there was probable cause to arrest Davidson for reasons other than failing to identify. The Court considered Tex. Penal Code § 42.03 which makes it unlawful to obstruct the entrance to an abortion clinic. Specifically, the statute makes it unlawful to “render impassable or…render passage unreasonably inconvenient or hazardous” for clinic patients. The Court found that Davidson’s actions could in no way be construed as fitting within this statute. An employee of the clinic admitted that Davidson was not stopping or preventing entry of anyone into the clinic. The Court said that, “…while these actions could be considered inconvenient…they cannot be construed, by an objectively reasonable officer…as rendering entry to the clinic impassable or unreasonably inconvenient as required under § 42.03”.

As such, the Court found that there was no probable cause for the arrest and that it violated both the First and Fourth Amendments and that every reasonable officer would have understood that they were violating Davidson’s Constitutional rights. The officers were thus denied qualified immunity.

]]>Maybe It’s You: First Circuit Affirms Summary Judgment in Premises Liability Casehttps://mblb.com/municipal-law/maybe-its-you-first-circuit-affirms-summary-judgment-in-premises-liability-case/
Mon, 03 Apr 2017 21:42:24 +0000http://legallagniappeblog.com/?p=4936In August 2011, a two year-old was at Independence Park in Baton Rouge with his grandmother to watch a football game. While the grandmother’s attention was diverted, the two-year-old climbed up the bleachers with a ten-year-old child. The two-year-old fell from the bleachers, landing on his back atop a concrete surface. The child’s parents sued … More»

]]>In August 2011, a two year-old was at Independence Park in Baton Rouge with his grandmother to watch a football game. While the grandmother’s attention was diverted, the two-year-old climbed up the bleachers with a ten-year-old child. The two-year-old fell from the bleachers, landing on his back atop a concrete surface. The child’s parents sued the Recreation Park Commission for the Parish of East Baton Rouge (“BREC”) as the owner and operator of the park, pursuing damages for the two-year-old’s injuries as a result of the fall. The parents alleged that the bleachers were defective and that the bleacher’s caused the child’s injuries. BREC filed a motion for summary judgment on the grounds that there was no credible evidence of any defect and that BREC had no notice of any defect even if one existed. The district court agreed, granting BREC motion and dismissing the case.

On appeal, the Louisiana First Circuit Court of Appeals affirmed the ruling, citing substantial evidence that there was no issue of material fact that a defect existed. BREC had presented an affidavit from its risk manager attesting to the fact that no complaints about the bleachers had ever been lodged. BREC also introduced deposition testimony of its representative, who testified that the bleachers had been at Independence Park since the 1980’s and that they were routinely inspected for safety hazards. Finally, BREC presented the testimony of the grandmother, who admitted that she did not know how the two-year-old child fell. The First Circuit concluded that there was an absence of factual support for essential elements of plaintiffs’ claims and found no error in the district court’s ruling in favor of BREC.

Hasbert v. The Recreation and Park Commission for the Parish of East Baton Rouge

]]>No Ethical Violation But Orleans Parish Judge Ordered to Reimbursehttps://mblb.com/municipal-law/no-ethical-violation-but-orleans-parish-judge-ordered-to-reimburse/
Thu, 30 Mar 2017 21:35:04 +0000http://legallagniappeblog.com/?p=4933Respondent was elected to serve as an Orleans Parish Criminal District Court Judge in 2003. In January 2012, the Judiciary Commission initiated an investigation into the practice of all Orleans Parish Criminal District Court judges receiving extra insurance benefits paid through the court’s judicial expense fund (“JEF”). The Commission found that from 2006 to 2011, … More»

]]>Respondent was elected to serve as an Orleans Parish Criminal District Court Judge in 2003. In January 2012, the Judiciary Commission initiated an investigation into the practice of all Orleans Parish Criminal District Court judges receiving extra insurance benefits paid through the court’s judicial expense fund (“JEF”). The Commission found that from 2006 to 2011, the JEF made payments on numerous primary and supplemental insurance policies covering Respondent, including long-term care policies, life insurance policies, critical illness, accidental death and dismemberment, cancer, heart, and ICU coverages. The supplemental policies included an insurance reimbursement program known as “Exec-U-Care,” which reimbursed beneficiaries for all co-payments and out-of-pocket health expenses. The Commission approved a formal charge against Respondent alleging that participation in these programs and receiving these benefits was a violation of various canons of the Code of Judicial Conduct. The Commission recommended that Respondent be publicly censured, ordered to reimburse the JEF in the amount of $57,359.96, and ordered to reimburse the Commission for $8,150.24 in costs.

On review by the Louisiana Supreme Court, the Court concluded that the Commission failed to prove by clear and convincing evidence that Respondent’s participation in the supplemental insurance programs rose to a level of sanctionable conduct under the Code of Judicial Conduct. The Supreme Court noted that use of JEF funds to purchase long-term health insurance plans was authorized by law. Although La. R.S. 13:691 (the judicial parity statute) did not authorize life insurance policies and the “Exec-U-Care” program, the fact that so many judges had benefited from the program made it “patently unfair” to “demonize” one particular judge. In the end, Respondent was ordered to pay the JEF $10,002.58 in out-of-pocket reimbursements received over the years from the “Exec-U-Care” program.

]]>City Introduces $40 Million Crime Prevention Planhttps://mblb.com/municipal-law/city-introduces-40-million-crime-prevention-plan/
Tue, 14 Feb 2017 19:11:58 +0000http://legallagniappeblog.com/?p=4891On January 23, 2017, the City of New Orleans introduced a $40 million crime prevention plan that includes installation of cameras and vehicle-tracking equipment in over 20 of the city’s neighborhoods. These camera feeds, as well as the feeds from existing public and private security cameras, will be sent to the New Orleans Police Department … More»

]]>On January 23, 2017, the City of New Orleans introduced a $40 million crime prevention plan that includes installation of cameras and vehicle-tracking equipment in over 20 of the city’s neighborhoods. These camera feeds, as well as the feeds from existing public and private security cameras, will be sent to the New Orleans Police Department central command center and monitored around the clock.

In addition to these enhanced surveillance efforts, the City of New Orleans has proposed increased security on Bourbon Street, including blocking off vehicle access to the first eight blocks, and requiring bars to keep their doors closed after 3 a.m. The goal is to discourage patrons from congregating on the street.